Issue 6:June 2014

ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18

High Court of Australia

16 May 2014

Workers compensation – Permanent impairment compensation – Injured worker claimed compensation – Subsequent specific claim for permanent impairment compensation under s 66 of 1987 Act – Amendments to the 1987 Act limited entitlement to permanent impairment compensation – Savings and transitional provisions of amending Act protected worker's entitlement – Employer claimed protection displaced by transitional regulation made pursuant to amending Act – Whether transitional regulation extinguished worker's entitlement – Whether transitional regulation valid.

Statutory interpretation – Retrospectivity – Henry VIII clause – Savings and transitional provisions.

Words and phrases – "accrued rights", "Henry VIII clause", "permanent impairment compensation", "retrospectivity", "savings and transitional provisions".

Facts:

The High Court held that a transitional regulation, introduced by the Workers Compensation Legislation Amendment Act 2012 (the amending Act), which had the effect of amending the 1987 Act, was valid.

On 17 April 2010, Mr Goudappel was injured at work when a bundle of steel “purlins” fell from a forklift crushing his left foot and ankle. On 19 April 2010, Mr Goudappel made a claim for general compensation arising from injuries he sustained. That claim was accepted and Mr Goudappel was paid weekly compensation.

On 20 June 2012, Mr Goudappel made a specific claim for lump sum compensation (under s 66 of the 1987 Act) in respect of a six per cent whole person impairment (WPI) arising from his injuries. This claim was made after the amending Act was introduced.

The amending Act introduced a new threshold, which did not exist before, for claiming compensation for permanent impairment. The new threshold provides that a worker who receives an injury that results in a degree of permanent impairment greater than 10 per cent is entitled to receive compensation from the worker’s employer (s 66). The amending Act also introduced a provision that provides that only one claim can be made for permanent impairment compensation in respect of the permanent impairment that results from an injury (s 66(1A)).

In addition, the amending Act introduced savings and transitional provisions which were said to preserve the rights of workers who made a claim for compensation before 19 June 2012 (cls 3 and 15 of Pt 19H of Sch 6 to the 1987 Act).

Clause 3 applied the amendments to accrued rights, subject to such exceptions to that application as were provided by Pt 19H or the regulations. Clause 15 was one such exception, which protected entitlements the subject of claims made before 19 June 2012 from the general application of cl 3 and, therefore, from the disentitling effect of the new s 66(1).

On 1 October 2012, a transitional regulation was passed which provided that the amendments introduced by the amending Act “extend to a claim for compensation made before 19 June 2012, but not to a claim that specifically sought compensation under s 66 or s 67 of the 1987 Act.” (cl 11). This was said to have had the effect of removing the protection conferred by the 1987 Act with respect to Mr Goudappel’s lump sum compensation entitlement.

Prior to the amendments of the 1987 Act, s 280, which was not affected by the amendments, conferred a general regulation-making power. The power to make regulations containing savings or transitional provisions consequent on the amending Act was derived from s 280, read with cl(1) of Pt 20 of Sch 6 to the 1987 Act. That power was expanded by cl 5 of the new Pt 19H, which authorised the making of savings or transitional regulations which were inconsistent with the provisions of Pt 19H and which amended the 1987 Act. In particular, cl 5(4) of Pt 19H was said to displace the protection which cl 15 otherwise accorded to Mr Goudappel’s accrued entitlement to permanent impairment compensation under the 1987 Act, as it stood prior to the amendments.

Mr Goudappel’s second claim for compensation was disputed by the employer’s insurer on the ground that the WPI was not greater than 10 per cent, as required by the amendments to the 1987 Act, introduced by the amending Act.

In answering a referred question of law, the President held that, as Mr Goudappel had not claimed lump sum compensation before 19 June 2012, the amendments introduced by the amending Act applied to him and he had no entitlement to such compensation. The President’s decision was appealed.

The Court of Appeal overturned the President’s decision finding that Mr Goudappel could rely upon the general claim he made on 19 April 2010 and that, to the extent that cl 11 sought to prejudicially affect his accrued right to permanent impairment compensation, it was beyond power and invalid. The Court of Appeal’s decision was appealed.

The dispute before the High Court concerned whether the regulation would have extinguished Mr Goudappel’s entitlement to lump sum compensation and, if so, whether the regulation was valid. It also concerned the validity of the regulation making power in circumstances where provisions of the 1987 Act were deemed to be amended in the manner specified in the regulations.

Held: Appeal upheld.

French CJ, Crennan, Kiefel and Keane JJ (Gageler J agreeing)

The construction of cl 11

1. It was noted that to accept the beneficial purpose of the 1987 Act as a whole does not mean that every provision or amendment to a provision has a beneficial purpose or is to be construed beneficially. The purpose of the provision must be identified. The evident purpose of cl 5 was to expand the regulation-making power so as to allow regulations to be made which could affect pre-existing rights. The purpose of cl 11, made pursuant to cl 5(4), was clear enough. It applied the new s 66 to entitlements to permanent impairment compensation which had not been the subject of a claim made before 19 June 2012 that specifically sought compensation under the old s 66. Its purpose was patently not beneficial [29].

2. There was no constructional choice which would enable cl 11 to be interpreted so as to avoid its application to Mr Goudappel's entitlement [30].

Whether cl 11 was within power

3. The argument that cl 5(2) did not authorise regulations that affected “accrued rights” was defeated by the text of the clause and its evident purpose of displacing the protection of existing rights effected by cl 1(3) of Pt 20 of Sch 6 to the 1987 Act [32], [60], [62].

4. Although it might have been argued that cl 5(4), being a so called Henry VIII clause, should be construed so as to enhance parliamentary scrutiny by the imposition of a manner and form requirement, the language of the sub-cl was not adapted to that kind of function. The “manner specified in the regulations” is to be read in this context as a reference to the amendment purportedly effected by the regulation. Clause 5(4) was to be read as giving effect to any such purported amendment of the 1987 Act by regulation falling within the power defined by reference to cl 5 and s 280 of the 1987 Act [34], [60]–[62].

5. It followed that cl 11 was valid [35], [66]–[67].

Inghams Enterprises Pty Ltd v Thoroughgood [2014] NSWCA 166

Court of Appeal

30 May 2014

WORKERS' COMPENSATION - leave to appeal - appeal from Deputy President limited to decisions in point of law - decision of Deputy President on appeal from interlocutory decision of arbitrator - decision of Deputy President interlocutory -leave required – the 1998 Act, s 353

WORKERS' COMPENSATION - claim for compensation -- medical practitioner recommended footwear to protect worker's varicose veins - worker requested proper footwear from employer - whether request for "therapeutic treatment given by direction of a medical practitioner" constitutes claim for compensation - whether cost need be incurred for a claim to be made - failure to make claim in accordance with applicable guidelines - the 1987 Act, ss 59, 60

WORKERS' COMPENSATION - proceedings to obtain compensation - concession that claimant needed to establish relevant incapacity for claim - Deputy President held that concession was mistaken - whether Deputy President erred in permitting claimant to depart from concession - the 1998 Act, s 354(3)

WORKERS' COMPENSATION - time of injury - injury occurs at time of incapacity - whether meaning of incapacity restricted to when an entitlement to weekly compensation arises - the 1987 Act, s 16(1)(a)(i)

NB: This headnote substantially follows the headnote issued by the Court of Appeal with this decision.

Facts:

Mr Brett Thoroughgood (the respondent) was employed at Inghams Enterprises Pty Ltd ("Inghams") since 2003. His work required him to stand on a wet concrete floor, hanging chickens, for eight hour days, five days per week. In 2006, he was diagnosed as suffering "aggravation or worsening of varicose veins" in his left leg as a result of standing for lengthy periods in wet conditions. On the recommendation of his general practitioner, in September 2006, the respondent requested suitable footwear. That request was denied by Inghams. The respondent resigned on 10 October 2006.

In January 2010, the respondent made a claim against Inghams for lump sum compensation in the amount of $7,500. Compensation would have only been recoverable if a claim had been made within six months of the worker becoming aware of the aggravation of his varicose veins. On 18 January 2010, an Arbitrator at the Commission held that the respondent's employment at Inghams was a substantial contributing factor to the aggravation of his varicose veins. The Arbitrator also held that the respondent had made a claim for compensation within the relevant six-month period, namely when he requested appropriate footwear in September 2006.

Inghams appealed the Arbitrator's decision to a Deputy President of the Commission. The Deputy President reaffirmed the finding by the Arbitrator that the request for footwear was within the six-month period. Nevertheless, the Deputy President allowed the appeal because the respondent did not suffer a relevant incapacity from the injury; it being conceded by the respondent that he needed to establish a relevant incapacity had resulted from the aggravation of the varicose veins for the compensation claim to succeed. The Deputy President reached this view on the basis that the incapacity must be one that establishes an entitlement to a claim for weekly compensation, which was not the nature of the respondent's claim. However, the Deputy President did not grant an award in favour of Inghams. The Deputy President held that the respondent was mistaken in believing he needed to establish a relevant incapacity to succeed and that the matter should be remitted to another Arbitrator for redetermination.

Inghams appealed the decision of the Deputy President. As the claim involved less than $20,000 and was an appeal from an interlocutory decision, leave to appeal was required. The respondent proposed to cross-appeal if leave was granted. The issues for determination were:

• whether the request for appropriate footwear constituted a claim for compensation;
• whether the Deputy President erred in allowing claimant to depart from a concession that the compensation claim could only succeed if there was a relevant incapacity; and
• on the proposed cross-appeal, whether the Deputy President erred in finding that there was no relevant incapacity since there had been no claim for weekly compensation.

Held: Leave to appeal was refused.

Basten JA (McColl and Meagher JJA agreeing)

Whether the request for appropriate footwear constituted a claim for compensation?

1. Section 60(1)(a) of the 1987 Act provides that the employer is liable to pay the cost of medical or related treatment, which includes therapeutic treatment given by direction of a medical practitioner. No authority was proffered that a claim for such treatment could not be made until a cost had been incurred. The claim for appropriate footwear was made in accordance with applicable guidelines [26]–[29].

Whether the Deputy President erred in allowing the claimant to depart from a concession that the compensation claim could only succeed if there was a relevant incapacity?

2. There were no strong reasons for granting leave of appeal from the finding that the respondent's concession was not binding: the issue of incapacity had not been in issue before the Arbitrator; the nature of the Commission's procedures are sufficiently flexible to allow the merit of the decision to be determined; and the consequence of allowing the claimant to depart from the concession raised no question of public importance [33]–[35].

Whether the Deputy President erred in finding that there was no relevant incapacity since there had been no claim for weekly compensation?

3. The authorities of the Court of Appeal do not stand for the proposition that the "incapacity" in s 16(1)(a) is one which gives rise to an entitlement to weekly compensation; rather, the authorities stand for the proposition that the relevant incapacity depends on the type of compensation being claimed [19], [36], [45].

McDonald v MW & JM Riddiford [2014] NSWWCCPD 27

Disease provisions; ss 4(b)(i) and 4(b)(ii) of the 1987 Act as they stood prior to the introduction of the 2012 amendments; failure to determine all issues in dispute; principles in Crisp v Chapman (1994) 10 NSWCCR 492 and Grate Lace Pty Ltd t/as Grate Lace Bricklaying Co v Theiss Watkins White (Constructions) Pty Ltd (1995) 12 NSWCCR 365 discussed

Roche DP

13 May 2014

Facts:

The appellant worker was a retired shearer aged 53 years old at the time of appeal. He worked continuously as a shearer from 1976 until 2002. Over the years up to 2002, the worker noticed increased pain in his neck, shoulders, elbows, wrists, back, knees and feet. He also noticed deafness and an umbilical hernia. He stopped shearing in 2002 due to pain in various parts of his body, but made no claim for compensation.

At some time in or about 2008, the worker worked as a shearer for National Grazing Services (NGS), a trading name for Grazcos. At the last shed at which the worker worked, he noticed that the pain in his knees, wrists, neck and back was getting worse and he was struggling to get going in the morning. Again, he made no claim for compensation.

The worker last worked as a shearer from 26 August 2010 to 1 September 2010, when he worked for the respondents to the appeal, MW and JM Riddiford. The worker claimed weekly compensation from the respondents in a letter dated 3 February 2012 and lump sum compensation in a letter dated 18 September 2012.

In an Application to Resolve a Dispute filed in the Commission on 20 November 2012, the worker claimed weekly compensation from 2 September 2010 to date and continuing together with lump sum compensation for various body parts and industrial deafness. The deemed date of injury was 1 September 2010, being the alleged date of incapacity.

Arising out of or during the course of employment as a shearer, the worker alleged he contracted degeneration of his neck, back, right and left legs, right and left shoulders, right and left elbows, right wrist and hand, left hand and wrist, right and left knees, right and left feet, umbilical hernia and industrial deafness, a disease of such nature as to be contracted by a gradual process to which such employment was a substantial contributing factor. Counsel ran the case under s 4(b)(i), that is, as a disease contracted in the course of employment. The respondents disputed liability on the grounds that the worker had not sustained a workplace injury for which compensation was payable and his injuries were not the result of five days of work with them.

The Arbitrator accepted that the worker suffered from a range of disabilities to various body parts that were no doubt causally connected to his work as a shearer between 1976–2002, but the worker did not state that his work with the respondents rendered his well-established muscular-skeletal degenerative or arthritic condition “more grave or serious” and there was no contemporaneous nor expert evidence “saying anything of that kind”. In other words, the Arbitrator found that the worker had not suffered an aggravation injury under s 4(b)(ii) but he did not consider if the worker had suffered an injury under s 4(b)(i).

The Arbitrator found that the claim for the hernia was not supported by any evidence that it was caused or exacerbated by work with the respondents.

In respect of the hearing loss claim, the Arbitrator found that there was no probative evidence of the tendencies, incidents and characteristics (of the worker’s employment with the respondents) to establish that the noise to which the worker was exposed (in that employment) could cause deafness. He said that the medical evidence on which the worker relied to support this part of the claim was “a generic one about shearing work”, which did not deal with the evidence of the worker’s work at the respondents’ premises.

The Arbitrator concluded that the worker had failed to discharge the “onus in proving injury” and he made an award for the respondents in respect of all claims.

The worker appealed. He challenged the whole of the Arbitrator’s determination, save for the finding in respect of the hernia.

The issues in dispute in the appeal were whether the Arbitrator erred in:

• focusing on whether the worker suffered injury of an identifiable nature in the course of his employment with the respondents, as opposed to considering whether the worker had suffered injury as a result of all of his employment as a shearer;
• not considering the worker’s case that his orthopaedic injuries were caused by the whole of his various employments as a shearer, and
• considering the facts as to whether the worker’s employment with the respondents was “noisy”.

Held: The Arbitrator’s determination was revoked, save for the determination of the alleged hearing loss injury, the alleged umbilical hernia and the alleged injury under s 4(b)(ii) which were confirmed. The claim relating to the appellant worker’s alleged disease injury under s 4(b)(i) was remitted to a different Arbitrator for re-determination.

The Deputy President determined the appeal under two headings: “the disease injury” and “the hearing loss injury”.

The disease injury

1. Counsel for the worker submitted to the Arbitrator that the worker’s case was solely based on s 15 and not on a s 16 aggravation. That is, he ran the case as a s 4(b)(i) injury. After receiving written submissions from the worker’s solicitor, filed without leave after the conclusion of the arbitration, the Arbitrator believed the submissions had changed tack from those made by counsel at the arbitration and that the worker was relying on an aggravation injury under s 4(b)(ii). Though it was understandable why he formed that view, and considered the s 4(b)(ii) argument, that did not relieve him from considering and determining the s 4(b)(i) argument advanced, which had not been abandoned [28]–[29].

2. The worker’s deemed date of injury was said to be 1 September 2010, the alleged date of his incapacity. Therefore, if he otherwise established that he had suffered a s 4(b)(i) injury, s 15(1)(b) applied to place primary liability on the employer who employed him in employment to the nature of which the disease was due, at the time of, or last before, the relevant incapacity. The respondents were that employer. The reference to “incapacity” in s 15(1) was a reference to incapacity for which compensation is claimed (GIO Workers Compensation (NSW) Ltd v GIO General Ltd (1995) 12 NSWCCR 187). Therefore, in the circumstances of the present claim, the incapacity in 2002 was irrelevant [43].

3. Crisp v Chapman (1994) 10 NSWCCR 492 (Chrisp v Chapman) outlines the following criteria, which must be established to succeed with a claim under ss 4(b)(i) and 15:

• that the worker “received” a disease;
• that the disease was contracted by the worker in the course of employment, and
• that the employment was a contributing factor.

In the Deputy President’s view, the evidence fell well short of establishing the above matters [45]­­–[46].

4. Although counsel for the worker submitted that s 9A excludes “a disease injury”, the submission was based on the wording of the current section as amended by the Workers Compensation Legislation Amendment Act 2012. However, the amendment to s 9A only applies to injuries received on or after 19 June 2012. As the deemed date of injury in the present matter is alleged to be 1 September 2010, s 9A applies in the form it took at that time [59].

5. As the matter had to be re-determined in any event, it was not necessary for the Deputy President to address the s 9A issue further on appeal; save to say that, if evidence were called that satisfied the tests in Crisp v Chapman, it was difficult to see why s 9A would not be satisfied. That was not to say that, in a s 4(b)(i) case, the worker had to establish that his employment with the respondent was a substantial contributing factor to his injury. He did not. It is only s 16, which relates to s 4(b)(ii) injuries, that requires that compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration [60].

6. If a s 4(b)(i) injury is established, you then turn to s 15(1) to determine the employer who is liable to pay the compensation. Whilst that employer may not have caused the injury (see Grate Lace Pty Ltd t/as Grate Lace Bricklaying Co v Theiss Watkins White (Constructions) Pty Ltd (1995) 12 NSWCCR 365), it will still be liable to pay the compensation if it employed the worker “in employment to the nature of which the disease was due” (s 15(1)(b)). Before consideration of that question, the matters identified in Crisp v Chapman should first be determined [61].

7. The argument that the Arbitrator erred in failing to consider the whole of the worker’s employment as a shearer and therefore, failed to properly determine the alleged s 4(b)(i) injury succeeded. For the avoidance of doubt, the Deputy President found that none of the Arbitrator’s findings relating to the alleged disease injury, so far as they might be thought to relate to s 4(b)(i), remained on foot and that that issue must be redetermined anew. The Arbitrator’s finding that the worker suffered no s 4(b)(ii) injury was confirmed [66].

The hearing loss injury

8. The Arbitrator was correct to find that the opinion of Dr Scoppa, an ear, nose and throat physician qualified by the worker’s solicitor, was a generic opinion about shearing work and did not deal with evidence of the worker’s work at the respondent’s premises. As a result, Dr Scoppa had no history of the noise to which the worker was exposed whilst working with the respondents and expressed no opinion about that work. It followed that the Arbitrator was correct to find that Dr Scoppa’s opinion was a generic one that did not deal with the evidence about the worker’s work with the respondents [64]–[65].

9. The Arbitrator’s finding with respect to the hearing loss claim was confirmed and it is not open to argue that claim again [66].

Fairfield City Council v Arduca [2014] NSWWCCPD 31

Procedural fairness; s 354 of the 1998 Act; Commission informing itself; notice of injury; s 254 of the 1998 Act; weekly payments; former s 40 of the 1987 Act; onus of proof of unreasonable failure to comply with requirements of Ch 3 of the 1998 Act; former s 57 of the 1998 Act; challenge to factual findings

O’Grady DP

29 May 2014

Facts:

The respondent worker was employed by the appellant as a general handyman and truck driver between 1988 and 19 April 2010. It was not disputed that, on 9 March 1995, the worker received injury to his back in the course of his employment. At the date of that injury, the appellant was insured in respect of worker’s compensation liability by Allianz Australia Workers Compensation (NSW) Limited (Allianz). On 1 January 2002, the appellant became a self-insurer within s 3 of the 1987 Act.

Proceedings were commenced against the appellant by the worker in the former Workers Compensation Court of NSW in 2000. The worker sought awards of lump sum compensation pursuant to ss 66 and 67 of the 1987 Act in respect of permanent impairment of his back and permanent loss of efficient use of his right leg, said to have resulted from the injury received in 1995. Those proceedings were settled by agreement. Orders were made, by consent, which provided for payment of lump sums in respect of 15 per cent impairment of the back, 5 per cent loss of efficient use of the right leg, together with a lump sum of $7,250, pursuant to s 67.

Subsequent to that settlement, the worker alleged he suffered further injury to his back due to the nature of his work with the appellant and, as a result of lifting on 16 October 2008, suffered bilateral inguinal hernias. Some compensation benefits were paid by the appellant in respect of incapacity, medical expenses relating to the hernia injuries and subsequent operative treatment. The worker participated in an injury management and return-to-work program until he gave written notice of his resignation to the appellant on 19 April 2010.

On 1 July 2011, a claim was made by the worker against the appellant and Allianz in respect of weekly payments, further lump sums and medical expenses. That claim was declined by both the appellant and Allianz.

These proceedings were commenced in January 2013. Replies to the application were filed on behalf of Allianz and by the appellant as self-insurer. The worker’s application was listed before the Arbitrator for conciliation and arbitration on 30 September 2013, at which time the matter proceeded to hearing, was part heard and adjourned for further hearing on 18 November 2013. Upon resumption of the hearing, the Arbitrator was advised that the proceedings, in so far as claims were made against the appellant concerning injury whilst insured by Allianz, had been settled. Appropriate orders were made, including entry of certain awards in favour of the appellant “in the interest of Allianz” and an order of discontinuance in respect of the lump sum claim made against that insurer.

A Certificate of Determination was issued on 20 November 2013 which recorded the terms of the agreement, and it was noted that a “complying agreement” with respect to payment of further lump sums pursuant to ss 66 and 67 was to be executed by the parties.

The Arbitrator granted the worker leave to amend the application which effectively removed the allegations made against the appellant whilst insured by Allianz. The hearing concluded that day and the Arbitrator reserved his decision. A Certificate of Determination, accompanied by a Statement of Reasons, was issued on 11 December 2013 which recorded the determinations and orders including:

“The Commission determines:

1. The applicant sustained bilateral hernia injuries arising out of or in the course of his employment with the respondent on 16 October 2008 and from 2005 to 19 April 2010.

2. The applicant’s employment was a substantial contributing factor to his hernia injuries.

3. The applicant was incapacitated and was paid weekly compensation for various periods prior to 19 April 2010.

4. Since 20 April 2010, the applicant has been partially incapacitated for work as a consequence of his employment injuries.

The Commission orders:

5. Award for the respondent in the interests of the self-insurer in respect of the injury to the applicant’s back.

6. The respondent in the interests of the self-insurer to pay the applicant’s reasonably necessary medical expenses relating to his hernia injuries pursuant to section 60 of the Workers Compensation Act 1987.

7. The respondent in the interests of the self-insurer is to file and serve wage material for the applicant and two comparable employees for the period 1 July 2009 to 31 December 2012 by 31 December 2013.

8. The respondent in the interests of the self-insurer is to file and serve details of the applicant’s award classification and details of the award rates for the period 1 July 2009 to 31 December 2012 by 31 December 2013.

9. The parties are to file and serve submissions in respect of the applicant’s actual earnings and the earnings of comparable employees for the period 1 July 2009 to 31 December 2012 by 21 January 2014.

10. In the event that there are no comparable employees, the respondent in the interests of the self-insurer is [sic, is to] advise the applicant by 31 December 2013 and the parties are to file and serve submissions based on the jobs identified as being similar to the applicant’s pre-injury duties in What Jobs Pay, 13^th edition, 2012, Yorkcross, by Rodney Stinson, by 21 January 2014.

11. I remit this matter to the Registrar for referral to an Approved Medical Specialist pursuant to section 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment of the whole person impairment due to hernia injuries sustained on 16 October 2008 and from 2005 to 19 April 2010.

12. The documents to be reviewed by the Approved Medical Specialist are: [not reproduced].”

On 11 February 2014, a further Certificate of Determination accompanied by a further Statement of Reasons was issued. The following determination and orders were recorded:

“The Commission determines:

1. The findings in the Certificate of Determination dated 11 December 2013 are confirmed.

The Commission orders:

2. The orders in the Certificate of Determination dated 11 December 2013 are varied as follows:

(1) Award for the respondent in the interests of the self-insurer in respect of the injury to the applicant’s back.

(2) The respondent in the interests of the self-insurer to pay the applicant:

a. $479.70 per week from 20 April 2010 to 30 September 2010 pursuant to section 40 of the Workers Compensation Act 1987;

b. $486.20 per week from 1 October 2010 to 31 March 2011 pursuant to section 40 of the Workers Compensation Act 1987;

c. $496 per week from 1 April 2011 to 5 August 2011 pursuant to section 40 of the Workers Compensation Act 1987;

d. $606 per week from 6 August 2011 to 30 September 2011 pursuant to section 40 of the Workers Compensation Act 1987;

e. $616.40 per week from 1 October 2011 to 31 March 2012 pursuant to section 40 of the Workers Compensation Act 1987;

f. $628 per week from 1 April 2012 to 30 September 2012 pursuant to section 40 of the Workers Compensation Act 1987, and

g. $638.10 per week from 1 October 2012 to 31 December 2012 pursuant to section 40 of the Workers Compensation Act 1987.

(3) The respondent in the interests of the self-insurer to pay the applicant’s reasonably necessary medical expenses relating to his hernia injuries pursuant to section 60 of the Workers Compensation Act 1987.

(4) The respondent in the interests of the self-insurer to pay the applicant’s costs as agreed or assessed.

(5) I certify that this that this [sic] determination of the dispute between the applicant and the respondent in the interests of the self-insurer is to be treated as a separate resolution to the determination of the dispute between the applicant and the respondent in the interests of Allianz Australia Workers Compensation (NSW) Ltd for the purpose of the calculation of costs for the applicant under Schedule 6 Part 1 Clause 9(2) (b) of the Workers Compensation Regulation 2010.

(6) I certify a 30 per cent uplift for the applicant pursuant to Schedule 6 Part 2 Table 4 Item 4 of the Workers Compensation Regulation 2010 due to the legal, medical and liability issues arising from this claim which was listed for a conciliation conference and arbitration hearing on two occasions.
(7) I remit this matter to the Registrar for referral to an Approved Medical Specialist pursuant to section 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment of the whole person impairment due to hernia injuries sustained on 16 October 2008 and from 2005 to 19 April 2010. The Approved Medical Specialist is requested to provide an assessment for the combined effects of the frank incident and the employment from 2005 to 19 April 2010.

(8) The documents to be reviewed by the Approved Medical Specialist are: [not reproduced].”

Issues in dispute on the appeal

The grounds relied upon by the appellant were stated in written submissions as follows:

“a. Error of law in determining the dispute on a basis not put by or to the parties;

b. Error by the Arbitrator in failing to have proper regard to the evidentiary onus carried by the worker.

c. Denial or [sic, of] procedural fairness

d. Error of discretion in reducing the weekly compensation by reference to the fourth step in Mitchell by only $100.00 per week.

e. Error by the Arbitrator in failing to properly consider and determine the issue of the late notification of injury.

g. Error by the Arbitrator in his consideration of the clinical notes of Dr Pham.”

The grounds, as expressed, particularly grounds (a), (b) and (c), failed to clearly identify the error or errors said to have been committed by the Arbitrator. However, the submissions put in support of the appeal identified particular matters of which complaint was made. The Deputy President noted that, in relation to complaints concerning the Arbitrator’s approach to the question of the giving of notice of injury, that there was repetition found in argument as it appeared in relation to grounds (b) and (e).

Held: The Arbitrator’s findings found in the Certificate of Determinations dated 11 December 2013 and 11 February 2013 were confirmed.

Ground (a)

1. The appellant identified the following matters as demonstrating such error:

• when determining relevant “probable earnings but for injury” the Arbitrator wrongly disregarded the worker’s stated reliance upon the wage schedule which specified a weekly amount of “$777.0” [sic, $773.01];
• failing to “indicate an intention to depart from the worker’s submission as to probable earnings”;
• failing to “invite submissions of the parties in this regard”;
• having regard to the publication “What Jobs Pay” in the absence of a submission from the worker that such course was appropriate;
• concluding that the worker was “most appropriately considered ... to be a truck driver in contradiction of the worker’s submission that he should properly be regarded as a labourer”, and
• concluding that the appellant had not complied with its obligations to provide the worker with suitable duties [35].

2. It was abundantly clear, and must have been so to the parties’ representatives, that the Arbitrator was concerned at all relevant times to ensure that all relevant evidence and submissions concerning earnings were before the Commission to permit a just resolution of the dispute. There was either no documentary evidence to support the calculations, or the calculations were inconsistent with financial material in evidence [44]–[45].

3. The difficulty identified by the Arbitrator, as was anticipated and not successfully resolved by his issue of directions on two separate occasions, was resolved by determining the worker’s pre-injury earnings by mathematical calculation founded upon the contents of the worker’s income tax return. That calculation demonstrated the unreliability of the figures put forward by each party [46].

4. It was the Arbitrator’s obligation to conduct proceedings according to the law with due regard to equity, good conscience and the substantial merits of the case [47].

5. The appellant’s complaints noted at (a)–(c) above did not, in the Deputy President’s opinion, demonstrate any relevant error by the Arbitrator. As was established on the authorities including Seltsam and Wrigley Co Pty Ltd v Holland [2002] NSWCA 109; 23 NSWCCR 463, the Arbitrator was not bound by the manner in which the case was conducted, in the present context, as to the figure of $773.01. His obligation was, if he was to depart from or disregard that submission, to state reasons for so doing and inform the parties of his approach [50].

6. The Arbitrator had, persistently, since the date of issue of a direction in October 2013, made clear to the parties that he was concerned as to the state of the evidence concerning relevant earnings. Those directions, and those made subsequently, were specific in their terms. In particular, the appellant was directed to produce those records that were directly relevant to the question of pre-injury earnings and probable earnings but for injury [51].

7. The appellant’s failure to produce the relevant material was unexplained. The appellant plainly ignored the Arbitrator’s stated need for relevant material and had failed to raise relevant submissions [53].

8. The appellant’s complaints noted at (d) and (c) above were rejected. The Commission is not bound by the rules of evidence and may inform itself on any matter in such manner as the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits: s 354(2) of the 1998 Act. The Arbitrator’s view as to the possible relevance of ‘What Jobs Pay’ had been made clear to the parties since the making of the directions in October 2013. The Arbitrator was, in the Deputy President’s opinion, entitled to bring that publication to the notice of the parties in the absence of any submission by the worker having earlier been made as to its possible relevance. The Arbitrator had discharged his obligation to disclose to the parties his view as to the publication’s likely relevance and to invite submissions. No relevant error, in the Deputy President’s view, was made out concerning the Arbitrator’s manner of adjudicating the question of probable earnings, but for injury [54].

9. Complaint was also made under this ground that a finding had been made that the appellant had “not satisfied its obligations regarding the provision of suitable duties” in the absence, as argued, of a submission to that effect made by the worker. The relevant finding of fact by the Arbitrator was made following a consideration of the appellant’s reliance upon the terms of the former s 57 of the 1998 Act. That section provided that a worker was disentitled to weekly benefits upon unreasonable failure to comply with the requirements of Ch 3 of that Act. That chapter concerned, relevantly, provision by an employer of a return-to-work program and obligations upon a worker concerning such plan [55]–[56].

10. The duties provided under the appellant’s plan were said to be unsuitable. The Arbitrator accepted the worker’s argument. The appellant’s reliance upon the provisions of s 57 required a determination of the reasonableness of the worker’s conduct in ceasing the work provided by the appellant. Argument raised required a determination of the suitability of that work. The appellant’s argument concerning this aspect of the Arbitrator’s reasoning and assertion of error was rejected [58]–[59].

Ground (b)

11. Two complaints were made under this ground. It was firstly asserted that the Arbitrator had failed to have proper regard to the evidentiary onus on the worker in respect of the provision of suitable employment. So far as the onus of proof concerning the question as to whether the worker failed unreasonably to comply with Chapter 3 the Arbitrator, correctly concluded that the onus was upon the appellant (Darling Island Stevedoring and Lighterage v Jacobsen [1945] HCA 22; 70 CLR 635) [60]–[61].

12. The second complaint under this ground was a broadly stated suggestion that the Arbitrator erred in failing to have proper regard to the evidentiary onus on the worker in determining the disputed issues as to injury, causation, substantial contributory factor and the worker’s failure to give notice of injury. No alleged error was identified in the reasons as expressed by the Arbitrator other than a bland assertion of factual error. No relevant error was made out. So far as complaint was made concerning the Arbitrator’s approach to the appellant’s reliance upon s 254 of the 1998 Act, those matters raised were addressed below where ground (e) was considered [63].

Ground (c)

13. Serious allegations concerning the conduct of the Arbitrator were made by the appellant in circumstances where it expressly eschewed any reliance upon suggested actual bias. Leaving aside this apparent contradiction which arose from the argument, the Deputy President rejected those allegations. This ground was rejected [66].

14. The manner in which the Arbitrator conducted the hearing complied with his statutory obligations and, in exercise of the Commission’s jurisdiction, there was no departure from permissible conduct (Aluminium Lourves and Ceilings Pty Ltd v Zheng [2006] NSWCA 34; 2006 4 DDCR 358) [67].

Ground (d)

15. This ground asserted error by the Arbitrator in the manner of exercising discretion granted by the terms of the former s 40 of the 1987 Act. That discretion concerned calculation of the quantum of weekly payments. The amount awarded must not exceed the reduction in the worker’s weekly earnings as calculated in accordance with the section but was to bear such relation to the amount of that reduction as may appear proper in the circumstances of the case [68].

16. The Arbitrator’s Reasons of 11 February 2014 demonstrated that the matters raised by the appellant as being relevant to the exercise of discretion had been considered. Guidance as to the proper approach to the exercise of this discretion was acknowledged by the Arbitrator by his citation of the observations made by Australian Wire Industries Pty Ltd v Nicholson (1985) 1 NSWCCR 50 [70].

17. The Arbitrator had properly disregarded the antecedent back injury. It may reasonably be inferred from the reasoning expressed that the Arbitrator had taken into account the various unrelated health factors and the worker’s need to retire from the workforce [72].

Ground (e)

18. This ground suggested error of the Arbitrator founded upon his misconception of the appellant’s submissions concerning alleged failure by the worker to give notice of the hernia injury alleged to have been received in October 2008 [73].

19. The appellant’s failure to comply with the notice requirements (s 74) meant that such “dispute” could not be referred for determination by the Commission: s 289A of the 1998 Act. No application for leave (s 289A (4)) to rely on the provisions of s 254 had been made by the appellant before the Arbitrator. That defence was, thus, not available to the appellant before the Arbitrator. It follows that the Arbitrator’s failure to address any issue arising from the brief and deficient submission concerning this section did not relevantly affect his decision. This ground failed [79].

Ground (f)

20. Complaint was made that the Arbitrator had failed to give adequate reasons in respect of s 9A. That section provides that no compensation would be payable unless the employment concerned was a substantial contributing factor to the injury [80].

21. The Arbitrator was obligated to provide reasons for his decision, and such reasons should be sufficient to enable a party to exercise his right of appeal: Soulemezis v Dudley Holdings Pty Ltd (1987) 10 NSWLR 247 [81].

22. The reasons expressed by the Arbitrator met the suggested standards concerning the provision of such reasons (Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 (Beale)). His Honour in Beale expressed the view that there are three fundamental elements of a statement of reasons which, it was said, may be useful to consider. Briefly summarised they are: a judge should refer to relevant evidence; material findings of fact and any conclusions or ultimate findings of fact reached should be set out, and thirdly, those reasons should be understandable and preferably logical [83].

23. The argument as advanced by the appellant appeared to do little more than restate its argument as to liability in respect of the occurrence of injury. No deficiency in the reasons provided was made out and this ground was rejected [84].

Ground (g)

24. Notwithstanding the absence of corroboration by Dr Pham, the matters referred to by the Arbitrator were sufficient in his view to satisfy that the lifting incident had occurred as alleged. That conclusion was open to the Arbitrator on the evidence and his reasons for so concluding had been plainly stated. No error was demonstrated and this ground was rejected [89].

25. It may be seen that each ground relied upon by the appellant was rejected. In the circumstances the appeal was dismissed [90].

NSW Rugby League Ltd v Clapson [2014] NSWWCCPD 30

Partial incapacity; assessment of weekly compensation under s 40 of the 1987 Act (as it stood prior to the introduction of the amendments in the Workers Compensation Legislation Amendment Act 2012); concurrent employment; ability to earn; application of the principles in Cage Developments Pty Ltd v Schubert [1983] HCA 37; (1983) 151 CLR 584 and Aitkin v Goodyear Tyre & Rubber Co (Aust) Ltd [1945] NSWStRp 29; (1945) 46 SR (NSW) 20; non-compliance with Practice Direction No 6

Roche DP

28 May 2014

Facts:

The respondent worker worked for the appellant employer as a referee or touch judge at professional rugby league matches from 1980 until his injury in 2005. The worker’s employment required him to attend games on Friday nights, and/or Saturdays or Sundays, plus two training sessions per week. In addition, in 1995, the worker obtained full-time employment with Payless Shoes as a store manager working Monday to Friday.

On 28 May 2005, the worker injured his right knee whilst working as a touch judge and required two operations. He was unfit to return to work as a referee or touch judge but, since 2007, he continued to work intermittently assessing referees for the appellant at a much lower rate of pay. After his first knee operation, on 1 October 2008, the worker was only fit for his job with Payless Shoes for 20 hours per week. After his second operation, on 29 October 2009, Payless Shoes told the worker not to return until fit for unmodified duties.

In late 2010, the insurer paid for the worker to receive two days’ training in retail management. As a result, he received a Certificate IV in Training and Assessment. He also received a Certificate IV in Retail Management through his work history and experience, not due to the training.

In March 2011, due to being unable to return to pre-injury duties, the worker’s employment with Payless Shoes ended. He started a contract as a training consultant in retail management with Franklyn Scholar. Franklyn Scholar paid him based on invoices submitted. As a contractor, he claimed tax deductions for expenses related to this work.

The insurer paid voluntary weekly compensation until, by notice issued on 15 July 2011, it advised that it would cease payments on 22 July 2011 because the worker had commenced his own business. Future payments were to be calculated on receipt of his weekly income statement “and required documentation for make up pay”.

In a letter dated 22 September 2011, the worker’s solicitors disputed the amount of weekly compensation received between 2006 and 2010. In February 2012, the insurer referred the worker to a rehabilitation provider, Nexus Solutions, to research suitable roles for him in the open labour market and comparable wages for a retail trainer. Nexus Solutions assessed that retail trainers earned, on average, $1,592 per week. This assessment formed the basis for the dispute that subsequently developed. By notice dated 19 March 2012, the insurer reduced the worker’s weekly compensation to nil, effective from 19 April 2012. The assessment was based on pre-injury earnings but for the injury of $1,132.17 and the worker’s projected ability to earn of $1,592, as assessed by Nexus Solutions.

On 19 September 2012, the worker was promoted to be a full-time training consultant with Franklyn Scholar. At this time, he became an employee, rather than a contractor.

The worker claimed weekly compensation for the following periods:

• 28 May 2005 to 2 October 2007;
• 24 July 2011 to 24 April 2012, and
• 6 June 2012 to 31 December 2012.

There was dispute as to how to calculate the worker’s loss. The Arbitrator noted the worker’s earnings were generally just for his labour and the Arbitrator considered it appropriate to look to the worker’s tax returns. The Arbitrator directed the parties to file additional wage schedules and a joint wage schedule. The joint wage schedule set out the worker’s probable earnings, uninjured, with Payless Shoes and the appellant, his post-injury earnings with Franklyn Scholar, both before and after tax deductions, and his post injury earnings with the appellant.

The Arbitrator applied the five steps in Mitchell v Central West Health Service (1998) 14 NSWCCR 526 (Mitchell). Step one requires the determination of the worker’s probable weekly earnings but for injury. The Arbitrator accepted that, but for his injury, the worker would have continued working as a referee and for Payless Shoes. Probable earnings from those two sources were agreed: the figure as at September 2012 was $1,155.54.

Step two in Mitchell requires the determination of what the worker was earning or would have been able to earn in some suitable employment (s 40(2)(b)) including the effect of tax deductions (Office of the Director of Public Prosecutions v Olsen [2009] NSWWCCPD 26).

Step three in Mitchell requires the deduction of the step two figure from the step one figure. In calculating this loss, the Arbitrator compared, in a table, the worker’s probable earnings, uninjured, as a referee, to his actual earnings doing intermittent assessing for the appellant. Mr Scribberas was a comparable referee who performed the work that the worker would have been doing but for his injury. The table provided:

Step four in Mitchell requires the exercise of the discretion to determine that the difference given by step three is proper in all the circumstances. Whilst the worker had training that resulted in him receiving a Certificate IV in Training and Assessment, the Arbitrator was not convinced that the retraining increased the worker’s ability to earn to any significant extent and she was not persuaded to exercise her discretion to take account of the training.

The Arbitrator ignored any potential loss from the Monday to Friday work and compensated the worker by awarding him the value of the loss of his refereeing work.

The appellant asserted that the Arbitrator erred in her application of s 40 and the test in Mitchell, in that she:

• accepted the worker’s tax returns as evidence of his ability to earn;
• failed to take into account evidence of the amount the worker was capable of earning (as assessed by Nexus Solutions);
• as a result of (a) and (b), failed to correctly determine the worker’s current earnings in accordance with the authorities, and
• failed to acknowledge improvement in the worker’s employment with Franklyn Scholar as a result of the injury.

Held: The appeal was unsuccessful and the Arbitrator’s determination was confirmed.

Discussion and findings

The worker’s tax returns

1. The Arbitrator noted that the earnings from the worker’s “business” were generally just the supply of his labour with no significant investment or capital. That finding was consistent with the evidence and was correct. In the worker’s “business”, he trained people in retail management. The “business” had no goodwill and involved no return on capital. There was no evidence of a business name or of business premises. The only return the worker received was for his labour. It was therefore appropriate for the Arbitrator to look to the worker’s tax returns to determine his actual earnings [54].

2. The tax returns disclosed that the worker’s deductions were mainly for motor vehicle expenses and, in the absence of any evidence to the contrary, it was open to the Arbitrator to find, as she did, that those expenses were properly incurred in the conduct of his contract work for Franklyn Scholar, which was for the supply of his labour at different places in NSW [55].

3. The Arbitrator properly considered the tax deductions relating to the work with Franklyn Scholar and, for the reasons discussed above, determined that they were appropriate. That approach and conclusion disclosed no error. The Arbitrator acknowledged the worker’s income, as disclosed in his tax returns, did not represent a return on capital and concluded that the tax deductions, for clothing, subscriptions, donations, travel to agents and motor vehicle expenses did not give him a significant advantage. These findings were consistent with the evidence and disclosed no error [56].

The worker’s ability to earn

4. As the worker was gainfully employed at all relevant times and there was no evidence that he took lower paid work (Pira Pty Ltd v Tucker [1996] NSWSC 569; 14 NSWCCR 26) or was idling or malingering (Aitkin v Goodyear Tyre & Rubber Co (Aust) Ltd (1945) 46 SR (NSW) 20), his actual earnings were the measure of his ability to earn [64]. The correct approach in step two of Mitchell was to therefore consider the worker’s actual earnings. To adopt the theoretical figure suggested by Nexus Solutions would have been an error [64]-–65].

5. In the case of a self-employed worker, there is no single way in which actual earnings must be determined (Cage Developments Pty Ltd v Schubert [1983] HCA 37; (1983) 151 CLR 584 (Cage Developments)) and each case will depend on its own facts. Where a business consists essentially of the provision of personal services by the worker and no significant investment of capital is involved, the actual net earnings of the business might properly be considered as representing the worker’s ability to earn (Cage Developments; J & H Timbers Pty Ltd v Nelson (1972) 126 CLR 625). Therefore, it was appropriate to look to the worker’s net (taxable) income as disclosed in his tax returns [66]–[68].

6. It was not appropriate for the Arbitrator to determine the value of the worker’s labour to Franklyn Scholar as the tax deductions he claimed were not by someone operating a business but were deductions for performing certain types of employment under contract. The worker had merely performed contract work for Franklyn Scholar and did not have a business name, an office, any goodwill or any of the other trappings of a business [73].

The improvement in the worker’s employment with Franklyn Scholar

7. The assessment by Nexus Solutions of $1,592 a week was not the correct assessment of the worker’s ability to earn. The argument that the worker’s ability to earn had increased as a result of re-training was incorrect. There was no evidence that the worker secured the job with Franklyn Scholar because of the retraining. Given the state of evidence on that issue, that finding was open and disclosed no error [78].

8. If the retraining had resulted in a relevant increase in the worker’s earnings or earning capacity, that would be reflected in step two of Mitchell, not in step four (Raghavadev v Moonlight Mushrooms Pty Ltd [2010] NSWWCCPD 120) [79].

9. Although the Arbitrator effectively found that the pre-injury earnings with Payless Shoes and post-injury earnings with Franklyn Scholar cancelled each other out, this was not correct. Whilst the Arbitrator’s approach to step two in Mitchell was correct, the worker’s earnings with Franklyn Scholar were less than his earnings with Payless Shoes. However, any potential detriment falls on the worker, not the appellant. As the worker had not challenged the result, and as the appellant had not identified any relevant error, it was not open to the Deputy President to recalculate the award [80].

Allianz Australia Insurance Ltd v Kyle [2014] NSWWCCPD 29

Apportionment between a personal injury and an aggravation of a disease; assessment of medical evidence; alleged failure to give reasons; addition of insurers as parties; application of principles in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 8 DDCR 399

Roche DP

21 May 2014

Facts:

The respondent worker worked for Australian Health & Nutrition Association Ltd trading as Sanitarium Health Food Company (Sanitarium) between 1985 and November 2004. Between 1985 and when he ceased work in November 2004, he suffered injuries to his left knee on 10 December 1985, 15 January 1993, 17 January 1993, in July 1994 and as a result of the nature and conditions of his employment between 1985 and when he ceased work in November 2004. Further, the injuries were said to arise as a result of a disease of gradual onset. Some of the injuries also involved the worker’s right knee and back but the claim related only to his left knee. When the worker ceased work in 2004, the insurer on risk paid voluntary compensation until November 2011.

Though Sanitarium had several insurers between 1985 and November 2004, it was only necessary to consider two. Allianz Australia Insurance Ltd (Allianz) insured Sanitarium for all relevant periods up to 31 December 1986. Cambridge Integrated Services Australia Ltd t/as Xchanging (Cambridge), acting for several insurers under the lead agent’s scheme, covered all periods from 1 January 1988 until November 2004.

The worker claimed weekly compensation from 21 August 2011 to 31 December 2012 and hospital and medical expenses of $25,000 in respect of (proposed) knee replacement surgery for his left knee. There was no dispute that the proposed surgery was necessary.

The Arbitrator found that the worker suffered two injuries: first, a partial tear of his left medial meniscus in the 1985 injury and second, an aggravation of a disease (osteoarthritis) as a result of the several subsequent incidents and as a result of the nature and conditions of the worker’s employment up to November 2004.

As the Arbitrator found that the worker suffered two injuries, there was a need to apportion liability between Allianz Australia and Cambridge. He found that, as a result of the 1985 injury, Mr Kyle underwent a partial meniscectomy in 1994 and that that surgery led to the medial compartment arthritis. As arthritis brought about the need for the proposed knee replacement surgery, and the incapacity, the Arbitrator apportioned liability 70 per cent to Allianz Australia and 30 per cent to Cambridge.

The issues in dispute on appeal were whether the Arbitrator erred in:

• failing to provide any or any adequate reasons for apportioning liability in the manner he did, and
• making an apportionment of liability that was against the weight or the evidence.

Held: The Arbitrator’s determination was confirmed. The matter was remitted to the Arbitrator for determination of all outstanding issues.

Discussion and Findings

1. The Arbitrator correctly observed that apportionment may be made between a frank injury and an injury by way of aggravation of a disease (Australian Conveyor Engineering Pty Ltd v Mecha Engineering Pty Ltd [1998] NSWCA 51; (1998) 45 NSWLR 606) [74].

2. An Arbitrator’s obligation to give reasons depends on the circumstances of the individual case (Mifsud v Campbell (1991) 21 NSWLR 725) [92]. The Arbitrator exposed his reasoning on the critical issues in dispute and articulated the essential ground on which he based his decision (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247). The reasons were adequate [94].

3. Once it was accepted the worker’s incapacity resulted from more than one injury, as the Arbitrator clearly accepted, the common law test applies and the relevant enquiry directs attention to whether the injury caused or materially contributed to the incapacity. Accordingly, the approach evident in Morris v George, which reflected the restrictions imposed by the search for a proximate or direct cause, should no longer be regarded as sound (Sutherland Shire Council v Baltica General Insurance Co Ltd & Ors (1996) 12 NSWCCR 716 (Sutherland Shire Council)) [96].

4. The appellant’s submissions on appeal, which emphasised the fact that the worker worked for many years after the 1985 injury, relied very heavily on the proximate cause or direct cause approach. That approach was expressly rejected in Sutherland Shire Council and is inconsistent with Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 [97].

5. The Arbitrator’s apportionment of liability involved his assessment of the (unsatisfactory) medical evidence, with limited assistance from counsel. That involved a choice or discretion “as to which there may well be differences of opinion” (Podrebersk v Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALR 529) (Podrebersk). Moreover, in Phillis & Anor v Daly (1988) 15 NSWLR 65 (at 78), in a passage quoted with approval in Podrebersk, “appellate courts are reluctant to interfere with an assessment of responsibility unless the judge has acted upon some wrong principle or the apportionment is manifestly erroneous” [98].

6. It may have been arguable that, given the nature of the injury in 1985 and its signficiant consequences, namely, the development of osteoarthritis, Allianz Australia’s liability should have been more than 70 per cent (Lyons v Master Builders Association of NSW Pty Ltd (2003) 25 NSWCCR 422). However, as Cambridge did not present such an argument it was not necessary to express a view about it [102].

7. The Arbitrator’s conclusion was correct: the relevant incapacity resulted from the pain in the left knee, that pain is due to the osteoarthritis in the knee, the osteoarthritis was largely due to the injury in 1985 and consequential surgery in 1994. That the Arbitrator did not spell out his reasoning in full with respect to the weekly compensation claim was of no consequence. The essential ground for his decision was clear from a reading of his decision as a whole. It is not an error of law to omit to state expressly a finding that is clear on a fair reading of the decision (Polglaze v Veterinary Practitioners Board of NSW [2009] NSWSC 347) [103].

McGettigan v North Coast Tree Service Pty Ltd [2014] NSWWCCPD 25

Application to extend time to appeal; evaluation of expert evidence in circumstances where no direct evidence of causation

Keating P

6 May 2014

Facts:

The worker was employed by the respondent, North Coast Tree Service Pty Ltd, as a vegetation management officer. His duties included spraying to eradicate weeds, managing tree regrowth and poisoning trees. The work exposed him to a range of chemicals utilising varying degrees of protective clothing and equipment.

On 25 September 2011, the worker submitted a claim for compensation, alleging he suffered a condition known as “peripheral neuropathy” as a result of chemical exposure. He was incapacitated from 29 March 2012.

The employer’s insurer declined liability on the grounds that the worker had not sustained an injury within the meaning of s 4 and that his employment was not a substantial contributing factor to the alleged injury as required by s 9A.

A Commission Arbitrator was not persuaded that the worker had discharged the onus of establishing, on the balance of probabilities, that the peripheral neuropathy from which he suffered was caused by exposure to chemicals at work. The Arbitrator made an award for the employer.

The worker sought leave to appeal out of time. The worker submitted that an unnamed member of the registry allegedly advised that the Commission does not “count the fortnight over Christmas in the calculation of the time” to file an appeal.

The issues in dispute on appeal were whether the Arbitrator erred in:

• failing to give proper and sufficient reasons;
• failing to identify the correct legal test by which he was required to determine the issue of injury, and
• alternatively, applying the incorrect legal principles in determining the issue of injury.

Held: Leave granted to appeal. The Arbitrator’s determination was confirmed.

Time

1. An appeal against a decision of an Arbitrator must be made within 28 days after the making of the decision appealed against (s 352(4) of the 1998 Act).The last day for lodging the appeal under s 352(4) was 15 January 2014. The appeal was lodged on 23 January 2014 and was therefore lodged out of time [16], [28].

2. The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal (Rule 16.2(12)) [29].

3. It was imprudent for the appellant solicitor to rely upon the alleged conversation with an unnamed member of the registry, regarding the time for filing of an appeal, without first checking the accuracy of the information provided with statutory and other regulatory provisions relating to extending time to appeal [33].

4. It was noted that dilatory conduct by a solicitor will rarely, if ever, justify an extension of time. However, the consequences of the application being refused were significant for the worker, in the event the appeal was successful. Given the unusual circumstances in which the appeal came to be filed out of time (the holiday period involved and the alleged conversation with a member of the registry staff) and the issues sought to be argued, the President was satisfied that it was an appropriate matter in which to extend time to appeal (Gallo v Dawson [1990] HCA 30; 93 ALR 479) [34]–[38].

Consideration

5. Contrary to the worker’s submissions, the Arbitrator did identify the application of s 4 of the 1987 Act as the starting point of the analysis. The Arbitrator stated that in order to prove injury within the meaning of s 4 the worker must establish “a causal link between exposure to chemicals and the development of the condition” [89].

6. The Arbitrator correctly identified and stated the issues in accordance with the statutory definition of “injury” in the particular circumstances of this case, and in a manner consistent with the parties’ submissions. The appellant’s counsel made no submission at the arbitration about any particular relevance to s 4(b)(i) of the 1987 Act. He agreed with the Arbitrator that the issue was causation. The submission that the Arbitrator did not apply the statutory test was therefore rejected [90].

7. The appellant also complained that the Arbitrator failed to consider and identify authorities relevant to the discharge of onus of proving injury in circumstances where there are competing experts’ opinions. After noting that the specialist doctors agreed that there was no proof of a direct causal link between exposure to chemicals and the worker’s condition, and the conclusion of one of the experts that it was appropriate to adopt the most likely cause, the Arbitrator then asked if that opinion was sufficient to establish that exposure to organophosphates was the most probable cause. The Arbitrator considered the evidence to determine if he felt actual persuasion that causation had been established on the balance of probabilities. His approach disclosed no error (Nguyen v Cosmopolitan Homes [2008] NSWCA 246) [91]–[93].

8. In identifying the issue in this way, the Arbitrator was acting in accordance with the legal requirements for proof on the balance of probabilities in cases where medical science cannot identify a biological or pathological mechanism by which the disease develops. If expert evidence establishes that the relationship is possible, the proof to the required standard may then be achieved by further evidence (expert or non-expert) [94].

9. The Arbitrator accepted that the evidence presented by the worker demonstrated a possible causal connection between peripheral neuropathy and his employment. However, consistent with the principles in EMI (Australia) Ltd v Bes (1970) WCR 114, the Arbitrator was required to weigh that evidence with other lay and expert evidence before reaching a conclusion as to the probable cause of the condition, he did that by identifying factors which militated against a finding that causation had been established. The Arbitrator’s analysis of the evidence revealed no error. The Arbitrator’s finding that he was not satisfied that the worker had discharged the onus of proof was open on the evidence and disclosed no error (Caruana v Darouti [2014] NSWCA 85) [95]–[101].

Adequacy of Reasons

10. The failure to provide adequate reasons constitutes an error of law and may be a ground to set aside an Arbitrator’s decision (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247) [105].

11. The Arbitrator clearly identified the “point critical to the contest”, as discussed in (Alchin v Daley[2009] NSWCA 418), by posing two questions:

• “Is it sufficient then to conclude that a likely or possible cause is the most probable cause?”, and
• “Is it sufficient to conclude, as it is known that organophosphate exposure is one of several known causes that in the absence of any other plausible explanation, organophosphate and other chemical exposure is the cause?” [106].

12. Resolving the critical point in issue involved an analysis of the lay and expert evidence. The Arbitrator carefully analysed the evidence and articulated the essential ground on which his decision rested. The Arbitrator’s reasons were sufficient to explain his reasoning process on the critical point, namely, his reasons for concluding that the worker failed to discharge the onus of proof that the peripheral neuropathy from which he suffers was caused by exposure to chemicals in the course of his employment. It followed that the Arbitrator did not err [107]–[109].

Thirunavukarasu v Malek Family Trust t/as Alfred Street Child Care Centre [2014] NSWWCCPD 26

Challenge to factual findings founded upon findings as to credibility of witness; s 254 of the 1998 Act; requirements as to giving of notice of injury; challenge to finding concerning prejudice; procedural fairness

O’Grady DP

12 May 2014

Facts:

The appellant worker alleged that he had received injury, being an inguinal hernia, arising out of or in the course of his employment with Malek Family Trust trading as Alfred Street Child Care Centre (the respondent) in 2009. The appellant had been employed as a part-time cook by the respondent. He alleged that the subject injury was received as a result of the duties performed by him in that employ between 21 October 2009 and 30 October 2009 or, in the alternative, as a result of the nature and conditions of his employment with the respondent between 1 June 2008 and 30 October 2009.

The respondent denied that the appellant had received the injury as alleged and, further, argued that the appellant had not complied with the requirements concerning the giving of notice of injury as prescribed by s 254 of the 1998 Act.

There is no dispute that the appellant had attended his general practitioner, Dr Christopher Grant, on 28 October 2009 at which time the presence of a left sided inguinal hernia was diagnosed. The appellant alleged that he reported the occurrence of injury to his superior, Mr Michael Malek, on 29 October 2009. Mr Malek disputes that such notice of injury was given.

The appellant continued to perform his duties until 15 September 2010 when he ceased work. On 16 September 2010, the appellant underwent repair of the hernia earlier diagnosed by Dr Grant as a public patient at Westmead hospital. That procedure followed earlier consultation with Dr Nimalan Pathma-Nathan, colorectal, general and laparoscopic surgeon. That practitioner had arranged the appellant’s admission and the procedure was conducted under the supervision of clinical superintendent, Dr Adrian Fernandez.

The appellant remained off work following that surgical treatment until 11 October 2010. He ceased work three days later and has not resumed employment since.

The appellant and its insurer were served with a worker’s injury claim form, which was accompanied by a WorkCover medical certificate, on or about 21 August 2012. The insurer denied liability in respect of provisional payments, and notice of that denial was forwarded to the appellant by correspondence dated 31 August 2012. These proceedings were commenced in the Commission on 25 September 2012. The appellant sought orders in respect of weekly compensation and medical, hospital and associated expenses. The Arbitrator, in a Statement of Reasons which accompanied that Certificate, recorded his findings that the appellant had failed to give notice of injury as required by the legislation and, further, found that he had failed to establish on the probabilities that he had received injury as alleged. An award was entered in favour of the respondent.

The respondent identified four grounds of appeal, being those concerning the factual findings as to occurrence of injury; the matters raised by application of s 9A of the 1987 Act; failure by the appellant to give notice of injury and suggested findings as to incapacity. The respondent submitted that no submissions “specific to” the findings as to the application of s 9A were made by the appellant. It was also submitted by the respondent that the Arbitrator had made no finding concerning alleged incapacity.

The Deputy President accepted the respondent’s last mentioned submissions. No finding concerning incapacity was made by the Arbitrator. Having regard to the manner in which the argument was advanced on appeal, the issues in dispute on appeal concerned findings that the appellant:

• failed to give notice of injury as required by the legislation, and
• did not receive injury arising out of or in the course of employment.

Held: The orders as found in the Certificate of Determination dated 23 January 2014 were confirmed.

1. The Arbitrator’s rejection of the appellant’s allegation concerning the occurrence of injury was plainly founded upon his assessment of the credibility of the appellant as a witness and of the shortcomings in the evidence in support of that allegation. The appellant failed to establish a foundation on which it could be demonstrated that the Arbitrator’s finding was against “incontrovertible facts or uncontested testimony” or that the finding was “glaringly improbable”, or “contrary to compelling inferences” (Fox v Percy [2003] HCA 22; 214 CLR 118) (Fox v Percy) [43]–[44].

2. It may have been seen that the Arbitrator’s findings concerning notice of injury were founded upon his stated preference for the evidence of Mr Malek over that of the appellant. Those conclusions of fact concerning notice, based upon credibility findings, may only be disturbed in circumstances such as suggested by Fox v Percy [47].

3. Nothing put on behalf of the appellant remotely suggested that the Arbitrator’s conclusions were against evidence of the character addressed by the High Court in Fox v Percy, nor that there were “glaringly improbable” or “contrary to compelling inferences”. Further, the Arbitrator’s conclusion as to prejudice was one open to him on the evidence [48].

4. The appellant’s argument that “special circumstances” as contemplated by s 254 exist so as to excuse the appellant’s delay in giving the respondent notice of the alleged injury must be rejected. It was put on appeal that “it was only at such time that the appellant consulted lawyers in 2012 that he was aware of his entitlements and rights”. The appellant failed to identify any evidence in support of the contention and the onus of proving special circumstances rests with the worker (Gregson v L & MR Dimasi Pty Ltd [2000] NSWCC 47). The challenges to the Arbitrator’s findings as to the giving of notice of injury and the occurrence of injury, as alleged, failed and the appeal was dismissed [46]–[50].

Bennett Constructions (NSW) Pty Ltd v Bond [2014] NSWWCCPD 32

Application to extend time to appeal; s 352(4) of the 1998 Act

Keating P

30 May 2014

Facts:

The respondent worker was employed as a casual bricklayer by DA&DE Burke t/as D&D Bricklaying (the employer). The employer was contracted, by Bennett Constructions (NSW) Pty Ltd (the appellant) to supply and install block work and associated works in the construction of a multi-purpose hall located in Murwillumbah, New South Wales.

On 27 July 2012 whilst working at the construction site in Murwillumbah an embankment gave way causing the worker to fall into a trench resulting in injuries to his lumbar spine.

The employer held a policy of insurance for workers’ compensation in the state of Queensland, but did not hold a separate policy under New South Wales workers’ compensation legislation. The appellant is insured for workers’ compensation under the New South Wales legislation.

The worker sought compensation against the principal, the appellant, pursuant to s 20 of the 1987Act. The appellant’s insurer denied liability for the worker’s claim under s 9AA(1) of the 1987 Act. It was submitted that the worker’s employment with the employer was connected with the state of Queensland (not New South Wales) in which place the employer would be liable not the appellant.  

A Commission Arbitrator concluded that the worker’s employment was connected to the state of New South Wales on the basis that he usually worked in that state. The Arbitrator found that the worker had been employed on a fixed contract for the period involved in completing the work in Murwillumbah and that there was no ongoing arrangement for permanent employment.

The Arbitrator further found that the appellant was the principal within the terms of s 20 of the 1987 Act. He deferred making the final orders and directed the parties to file Short Minutes of Order in accordance with his findings.

The appellant sought leave to extend time to appeal the Arbitrator’s decision.

The issues in dispute on appeal were whether the Arbitrator erred:

• in finding that the worker sustained injury in employment which was connected with the state of New South Wales, and
• by failing to give proper and sufficient reasons.

Held: Leave to appeal was refused. The matter was remitted to the same Arbitrator for determination of the worker’s entitlement to weekly benefits, if any.

Extension of Time

1. An appeal against a decision of an Arbitrator must be made within 28 days after the making of the decision appealed against (s 352(4) of the 1998 Act). The Arbitrator’s decision was made on 23 December 2013 and the appeal was lodged on 31 January 2014, out of time (s 352(4)) [17]–[19].

2. The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal (Rule 16.2(12)) [20].

3. The appellant submitted that the Arbitrator’s determination and Statement of Reasons were not received in his office until 7 January 2014. Due to the Christmas/New Year period, his office was closed until 13 January 2014. The Arbitrator’s determination came to the appellant solicitor’s attention on 17 January 2014, when he returned to his office from leave. On 24 January 2014, the appellant received instructions from his client to lodge an appeal [21]–[23].

4. It was further submitted that an extension of time should be granted having regard to the Christmas vacation period and that an extension of time in which to appeal was envisaged by the Arbitrator [24].

5. Whilst the Commission would ordinarily have regard to the difficulties faced by practitioners when the appeal period spans the Christmas holidays, that is not an automatic passport to an extension of time and does not of itself satisfy the exceptional circumstances test [29].

6. Although the window of opportunity open to the appellant to lodge the appeal after the Arbitrator’s determination came to his notice was short, the President was not satisfied that exceptional circumstances existed when no explanation had been offered for the failure to lodge the appeal when he had the opportunity to do so [33].

7. The submission that the Arbitrator envisaged an extension of time to appeal his determination on the liability issues was rejected. The granting of such an extension of time is a matter for a Presidential member, not an Arbitrator [34].

8. The prospects of the appellant succeeding in the appeal, is a factor to take into account in order to determine whether the strict application of time limits will work an injustice (Gallo v Dawson [1990] HCA 30; 93 ALR 479; Rule 16.2(12)) [35].

9. Whether or not there would be a demonstrable or substantial injustice if the time to appeal was not extended, in the present matter, required a consideration of the merits of the appeal [37].

Discussion and Findings

10. The reference to the evidence that the appellant “did not have the intention of terminating” the worker at the conclusion of the work in Murwillumbah was submitted to be evidence of an ongoing employment relationship of a casual nature. That submission was flawed. The very essence of an employment relationship “on a casual basis” is that it has no fixed term. Work is usually provided on an “as needs” basis. That was essentially what happened in the present matter. The worker was offered work as and when he was needed. There was never any agreement to extend the contract beyond the completion of the Murwillumbah job. That was made clear when the worker enquired about further work and was advised that there was no work immediately available. Therefore the question of terminating the worker did not arise. The contract had merely concluded [85].

11. The appellant relied on the worker’s evidence of his belief that he would be provided with ongoing work in order to establish an ongoing employment contract. The intentions of the parties to a contract are to be objectively ascertained(Lend Lease (Millers Point) Pty Ltd v Barangaroo Delivery Authority [2013] NSWSC 1848). The objective facts which the Arbitrator took into account were consistent with the worker being offered short term employment contracts from time to time if and when the workload permitted [86]–[87].

12. The Arbitrator acknowledged that the worker had performed one day’s work in Queensland prior to the Murwillumbah contract. However, he correctly found that that evidence was insufficient to rebut a prima facie case that the worker usually worked in the state of New South Wales, having worked 14 days at the Murwillumbah job [88].

13. Having regard to the intention of the contracting parties, objectively ascertained, a reasonable person would have understood them to mean that, as the Arbitrator found, the worker had entered into an arrangement with the employer on a casual basis, namely, for as long as work was available. On that basis, the state in which the worker usually worked in that employment was clearly New South Wales [89].

14. The Arbitrator concluded that no contract had been entered into beyond the term of the worker’s bricklaying duties at the project in Murwillumbah. As that work was undertaken in New South Wales it supported the Arbitrator’s finding that the employment was connected with New South Wales. The absence of any evidence as to arrangements for ongoing work, when it would occur, where it would occur and how much of it there would be, all militated against a finding of an ongoing contract [91].

15. It was open to the Arbitrator to find that no contract had been entered into beyond the project in Murwillumbah. The worker’s subjective belief that he would be provided with ongoing work was not relevant and did not establish a continuing contract [92].

16. Whether or not any further work undertaken by the worker for the employer was likely to be in Queensland or New South Wales was irrelevant because he was not employed under an ongoing contract of employment. If there was an ongoing employment relationship, the intentions of the parties as to where the work was to be carried out may have become relevant in terms of applying the proviso in s 9AA(6). However, that issue fell away because the Arbitrator’s conclusion that the contract between the worker and the employer was only for the duration of the project at Murwillumbah was clearly correct [93].

17. The appellant also alleged that the Arbitrator failed to give adequate reasons to explain his findings given the worker’s evidence that it was his belief that he would be provided with ongoing work and the employer’s evidence to the effect that it was not his intention to “terminate” the worker at the conclusion of the Murwillumbah work. The Arbitrator clearly stated the basis for his decision and complied with his obligation to give reasons (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247). In any event, if the reasons were insufficient to explain his conclusions on the essential issue it would have made no difference to the outcome of the appeal [94]–[97].

18. For the above reasons there were no prospects of the appeal succeeding. It followed that the appellant did not demonstrate that to lose the right to appeal would result in demonstrable and substantial injustice. Given the prospects of success on appeal and the appellant’s failure to demonstrate exceptional circumstances, the application to extend time was refused [98].